An Open Letter to Darl McBride

Dear Mr. McBride: I guess push is coming to shove, huh? You finally got a court to order release of the AT&T code, so things are coming together a bit on that end. It’s an important legal step, and one I’m sure you’ll be glad to get over with, despite the crowing going on among those who see it as a victory for IBM.

Inheriting the whirlwind is all very well as someone else’s metaphor, but it’s rough for you right now, isn’t it? Hang in there. You and I both know that right will ultimately prevail. Just bear in mind that no one has promised it’ll be you going along for the ride when that happens.

Meanwhile, however, you’re not helping yourself by throwing more pixie dust on the flames. That diatribe of yours on copyright and the GPL has got to go. I can understand the motivation, but it’s just wrong and lots of people are going to call you on it. The issue here isn’t whether the U.S. Constitution allows the GPL. The Constitution allows anything it doesn’t outlaw, and it doesn’t outlaw the GPL.

Focus on the Bottom Line

So let’s focus on the bottom line, okay? The issue here is whether the GPL can be used to launder code, not whether it’s constitutional in itself. In other words, can someone take contractually protected works, give them to a third party that releases them under the GPL, and then take back the new GPL code as if the original contract didn’t exist?

The answer to that question is pretty clearly “no,” but this doesn’t have anything to do with the 1976 copyright act. And you certainly don’t need to invoke the U.S. Constitution to prove it.

It doesn’t have anything to do with Caldera either. That’s just another red herring being dragged in with the effect of confusing the issue. Whether or not Caldera added its GPL stamp to some protected code is immaterial with respect to whether or not anyone else did it. The timing and genesis of each such release by Caldera might be of substantial interest during the penalty phase, but it’s not important now because of the principle that Jane’s actions don’t excuse Joe’s.

Forget the GPL

In other words, IBM can no more say “we’re off the hook because you did it too” than you can get off on a highway speeding charge by pointing out to the judge that the guy behind you was speeding too.

You’re probably too stressed to take advice, but here goes anyway: I’m guessing you’ve got a pretty good case, so don’t let the pressure get to you, and don’t let the lawyers fritter it away on externalities. The fundamental question is simple: Did one or more people working for IBM allow contractually protected code to get into Linux?

Yes or no — that’s your case. Everything else is legal trivia, so stay away from it.

Forget this GPL stuff. It’s not important. I mean really, can you imagine a grown-up lawyer telling a real court that SuSE’s release of code under the GPL makes everything all right if you can show that SuSE first got that code from an IBM staffer who should have known better?

Earn Some Friends

What you need to do right now is to earn yourself some friends. Show the general Linux community that your claims are justified, and a lot of fair-minded people will get on your side of the issue.

Focus on what counts for you, not for your lawyers. They care a lot about intention, but you shouldn’t. Did IBM’s American management know what was going on? Personally, I’d bet they didn’t. But either way, so what? From the perspective of lawyers seeking settlements, intent is everything — particularly if they’re working on spec — but from your perspective, whether they knew or not doesn’t matter. There is no principle at stake there, just money.

Your issue is, did it happen? So forget the copyright nonsense and recognize that the court has given you a break you can act on. Right now, you can publish anything you want to, and neither IBM nor any other signatory to the underlying AT&T contracts can come back at you for breaching the secrecy conditions of the contract.

Publish the Code

So publish the code, provide the annotations, and if Microsoft, HP or any other license-holder wants to complain, well, just point them at IBM. After all, that’s who hired lawyers to get a court to order you to do it.

I imagine that Boies, Schiller & Flexner are against this, but remember that Mr. Boies’ greatest notoriety comes from having been unable, with the resources of the U.S. Department of Justice behind him, to hold Microsoft to account for illegally exploiting its control of the PC desktop.

I don’t know if you can fire them, but I’d be surprised if they can stop you from complying with a court order, so go do that. Make everything public, and let the chips fall where they may.

Paul Murphy, a LinuxInsider columnist, wrote and published The Unix Guide to Defenestration. Murphy is a 20-year veteran of the IT consulting industry, specializing in Unix and Unix-related management issues.

No Comments

  • This "article" must be a joke, right?
    I’m looking at the calendar and April is …. a long ways away.
    Paul, Darl McBride told you Boies was on contingency. Is he?
    Paul, Darl McBride told you that SCOldera had a list of AIX customers and were launching AIX audits. Where are they?
    Paul, Darl McBride told you a copyright suit against RedHat was about to be launched. Where is it?
    Paul, Darl McBride told you that if SCOldera released the details of infringement the Linux community would "wipe the fingerprints" by proof of the infringement. Quite a feat, wiping the fingerprints of hundreds of millions of CDs, hundreds of thousands of DVDs, hundreds of thousands of textbooks ….
    How many times does Darl have to lie to you before you begin to suspect that everything out of his mouth is a lie?
    As far as SCOldera "publishing proof" of direct copying between SysV and Linux,
    There’s a reason SCOldera has not published their "PROOF".
    SGI told you what that reason is in their open letter.
    HP told you what that reason is when HP indemnified its Linux customers.
    SUN told you what that reason is since SUN keeps pushing their Linux desktops while not paying SCOldera one red cent for their "Unix IP for Linux" license. (SCOldera have not sold ONE of these licenses. That fact is in their SEC filings.)
    Back to your article, and a factual error therein – the court ordered SCOG to answer all of IBM’s interrogatories UNDER A PROTECTIVE ORDER. SCOG has not been ordered to show the public ANYTHING.
    10 seconds worth of research on Groklaw would have told you that, Paul Murphy.
    And waiting until you read the transcript of the oral arguments, instead of rushing to post your opinion, would have told you what SCOldera thinks of its own case.
    If you still don’t know what SCOldera thinks of its own case, please read the transcript, especially where Kevin McBride admitted to the judge that SCOldera has no case.

  • I’m sorry, but at this point, McBride has no friends left in the Linux world. He may have had some a few months ago, but by now, I bet all of those have turned on him just like he turned on them.

    And Caldera’s actions are of the utmost importance because it can be proven by witnesses (the developpers themselfs have admitted to it) that Caldera now SCO are the ones who actually contributed most if not all of what we can only suspect is the contested codes.

    I have to admit though that I agree on one thing,…show the code already.

    face it, if a big guy came to me in the street and said "there’s something in you suitcase that’s mine, you owe me money!"

    I’d ask what the hell they were talking about.
    Then they’d say "someone else put it there, you owe me money"

    I’d ask what the hell it was.

    They’d say "I don’t have to tell you or show you what it is, it’s in you suitcase, it’s mine, and you owe me money for it"

    well..I’d probably hit him as hard as I can between the big toes and tell him to leave me alode…
    Got it…SCO.

  • …since at the time, they were the survivor in interest of the Unix IP.
    One can certainly argue that once they ‘open sourced’ certain Unix flavors, no non-disclosure terms could afterwards be enforced against the code contained in those flavors.
    Obviously, this wouldn’t affect any disclosures that occured BEFORE their action, which MAY have been the point you were trying to make, though it didn’t really come out that way too well.
    True, in general, the actions of another party don’t imply the ‘rightness’ of the actions of the first one; unless that ‘other party’ happens to be the owner of the code in question.

  • Actually, Mr. Murphy, you have made a minor legal error. It is true that in a criminal case the fact that someone else did it is not a legal excuse.
    However, the rules are different in a civil case. Particularly important to this question is the doctrine of estoppel, or "unclean hands" which essentially states that you can’t sue someone for something you yourself also did.
    So the fact of contributions by Caldera to Linux IS relevant. The improvements Caldera added to Linux were, in fact, a major part of their business practices. (Programmers employed by SCO before SCO was bought by Caldera also contributed to Linux as well.) In fact, I know of one case where a Caldera programmer helped IBM with the transfer of the JFS filesystem from OS/2 to Linux.
    You can bet that IBM will dig up this information during discovery and that they will use it in a motion to dismiss.

    • I thought about that (my former editor at
      Linuxworld.com made the same point when he published my first comment on the SCO claim) but I think this will prove to be one of those situations in which the precise nice-ities of who owned whom when to hold what, will come into play.
      I don’t know the critical date was – sometime during the summer of 02 (not 03)- but I think SCOsource will be clean before that and able to
      argue that subsequent actions don’t matter. This point may get interesting, but I doubt it’ll be that difficult a matter to settle.

      • Sorry, but I dont understand the point of describing a legal issue as a "nice-itie".
        The original article wandered around the concept of the GPL, while the tag-line seemed to infer that someone was attempting to manipulate it to support some clever plan to steal proprietary code. After reading the article 3 times, all I come away with is you "believe" SCO must have a good case. Please elaborate…
        Despite the wandering nature of the article, the original respondant correctly pointed out that this is NOT a criminal case. The fact that the GPL’d release of the linux product by SCO (Caldera) negate future claims of IP infringment. This doesn’t seem like just a "nice-itie", It seems like the crux of the issue.
        You wanna give Darl some advice? Tell him to take a bunch of that option and bonus money and start paying a good defense attorney. Pump and Dump will inevitably attract the SEC, and I hear it has other connotations in federal prisons 🙂

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